Left-Wingers Attack; I Yawn

Apparently there’s been a series against me over at the Daily Kos by a left-liberal lawyer. I no longer pay attention to left-wing attacks. It’s the same arguments every time. They pretend I haven’t answered them. I have. They idiotically call me a “neo-Confederate” (have they really not seen the zombie video, or are they trying to caricature themselves?).

The most recent one is only slightly different. For some reason, central to his argument is his claim that Thomas Jefferson was an Antifederalist. He was not. Jefferson was a supporter of the Constitution, though he wanted term limits for the president, as well as a Bill of Rights. This is all explained in a basic text like David N. Mayer’s The Constitutional Thought of Thomas Jefferson.

I am then accused of “mendacity” (because I stand to gain a lot by lying about nullification!) because I do not note that nine states spoke out against the Virginia and Kentucky Resolutions of 1798, which laid out the doctrine of state nullification. By my count, seven states issued statements against the Resolutions, and I have discussed them repeatedly, both in my book (which the author has not read, naturally) and online.

I am “mendacious” for leaving this out, even though I didn’t leave it out, but my critic isabsolutely not mendacious for himself leaving out the reason that six of those seven states opposed Virginia and Kentucky: they favored the Sedition Act, and the principle that journalists should be thrown in jail for criticizing the president. Oops!

Details

Answering to a Higher Law

We spend a great deal of time defending the principle of state nullification of unconstitutional acts here at the Tenth Amendment Center. The philosophical basis for state nullification rests on delegation of powers and the structure of the system created by the Constitution. But other forms of nullification exist, finding their legitimacy in even higher authorities.

At the insistence of southern delegations, especially South Carolina’s, the final version of the U.S. Constitution included a fugitive slave clause in Article IV Sec. 2

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Granville Sharp was not pleased.

Sharp represented James Somersett in a famous English case that led to the conclusion that slavery was unsupported by existing law in England. In his ruling, Lord Mansfield essentially argued slavery was incompatible with common law.

The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

When Sharp learned of the fugitive slave clause in the Constitution, he fired off a letter to Benjamin Franklin saying he was “sincerely grieved.” He went on to declare the constitutional clause was “null and void…It would be even a crime to regard [it] as Law.”

Details

Rethinking the role of governments

The following was published as a letter to the editor in The Times-News of Burlington, NC

With the hype of this subject coming out almost daily it’s good to dispel some myths.

In 1798 nullification was born as a result of The Alien and Sedition Acts passed by the Federalists and John Adams. In summary, these acts meant people could not criticize the federal government. Yes, in the early U.S. journalists and others were arrested and jailed under these acts. The acts also stopped French immigrants from coming in while deporting others who were here.

At the time, Vice President Thomas Jefferson (back then the opposing party could be the vice president) and Gov. James Madison authored The Virginia and Kentucky Resolutions to oppose these acts and they were passed by the respective state governments. Nullification was also used against Federal Conscription during the War of 1812. The most important example of nullification is how Northern states used it in the fight against slavery and Federal Fugitive Slave Act in the 1840s and 1850s. Nullification has never been used to propagate slavery. It was however wrongly used in an effort to stop integration of schools in the 1960s, and shame on those who did it.

Details

Nullification Returns to Wisconsin

By Phil Zimmermann, originally posted at Wisconsin Republic

The Fugitive Slave Act of 1850 required citizens of the free states to capture and return escaped slaves. Wisconsin lead the charge against this despicable federal legislation through nullification and widespread non-compliance.

The Wisconsin Legislature passed a nullification resolution declaring the Fugitive Slave Act to be “without authority, void, and of no force.” The Wisconsin courts as well declined to prosecute Wisconsinites who refused to comply with the law.

Justice Smith of the Wisconsin Supreme Court said in 1854:

But the real danger to the union consists, not so much in resistance to laws constitutionally enacted, as in acquiescence in measures which violate the constitution.  It is much safer to resist unauthorized and unconstitutional power, at its very commencement, when it can be done by constitutional means, than to wait until the evil is so deeply and firmly rooted that the only remedy is revolution.

Today the Federal government again threatens civil rights. The Patriot Act and the Orwellian NSA surveillance state have all but destroyed the 4th amendment. The IRS and DOJ targeting of political groups and journalists seems bent on destroying the 1st amendment as well.

Against this backdrop Wisconsin Rep. Michael Schraa has introduced legislation to address the significant efforts being made to limit our ability to protect ourselves and our families, as guaranteed by the 2nd amendment.

“This bill, the Firearms Freedom Act, sends a simple message to the federal government,” said Schraa (R – Oshkosh).  “Wisconsin will not help you take away our second amendment rights.”

Schraa’s legislation targets the overzealous interpretation of the interstate commerce clause that the federal government uses to claim it can regulate all commerce. The legislation makes it clear that a firearm that is manufactured and housed in Wisconsin cannot be considered part of interstate commerce.

This clearly has implications that extend beyond firearms.

Details

Crossing the Rubicon?

In 49 B.C., Julius Caesar was leading his army and came upon the Rubicon River. The Provence  on the opposite side of the river had a law that said that no general could lead armies in that province. All armies had to be disbanded and the generals could not be in front. The penalty for disobeying this law was death to the general and death to the soldiers.

Julius Caesar crossed the Rubicon River leading his army and said, “The die is cast.” – He fought and defeated the local forces and that law was then abolished. Since that time, the phrase” crossing the Rubicon” survived and represents any situation in which there is no turning back. Whatever consequences arise from this decision are accepted.

We citizens of these United States  have “crossed the Rubicon.” We are confronted daily with a federal government that is overreaching and intrusive. Their voracious appetite for power and control has encroached on our very liberty and freedom.

With a heavy hand and an abuse of power, the federal government has sought to run roughshod over the sovereignty of our states, and has insisted on making laws, rules and regulations severely curtailing the freedom, liberty and rights enjoyed by this citizenry.

Details

Book Review: Reclaiming the American Revolution

After lying dormant for the better part of 150 years, nullification has been gaining momentum in recent years.  My own awareness of nullification, the idea that the states have the constitutional right to block federal enforcement of unconstitutional acts, was originally almost wholly due to the work of historian Thomas Woods, who literally wrote the book on Nullification in 2010.  As great as that book was, Woods’s work was preceded by six years by another author who offered the first book-length treatment of nullification in a century.

This was William Watkins’ 2004 book, Reclaiming the American Revolution.  Watkins, an attorney who specializes in constitutional law, opens his book by taking the reader through the events that led to the Kentucky and Virginia Resolutions of 1798, authored by Thomas Jefferson and James Madison respectively.  These resolutions were a response to the Alien and Sedition Acts, a series of unconstitutional laws passed earlier in 1798.

After laying out the historical background for these laws, including the so-called Quasi-War with France, Watkins discusses some of the ways that they were used to shut down opposition to President John Adams and his Federalist party.  The most notable instance of prosecution under the Acts was that of Benjamin Franklin Bache who, besides being the grandson of Benjamin Franklin, was also a journalist who used his newspaper to criticize the Federalists.  Bache’s tragic story begins with his arrest for violating the Sedition Act and subsequent death from yellow fever while awaiting trial.  Other stories of prosecution under the Acts, while not as tragic, are equally as troubling in their violations of the First and Tenth Amendments.

Details

Myth-Busting: The “Roman Condominium” Myth

Much of my scholarly research is designed to set the historical record straight—essentially myth-busting.

For reasons I’ll explain another time, most legal writers are terrible historians. They tend to cherry-pick history to promote a case, and when there aren’t enough historical facts, they sometimes make them up.

My efforts to correct the record are best known in the realm of constitutional law, but my first big project of the kind was actually about condominiums.

In the 1960s, ‘70s, and ‘80s, legal writers were uncritically repeating the story that the ancient Romans invented condominiums, or at least used them widely. This story made no sense at all: Ancient writers don’t mention condominiums, and Roman law actually prohibited schemes whereby one person owned airspace above another person. (The word “condominium,” meaning “co-ownership,” is Latin, but it is of relatively modern, not Roman, coinage.)

Details

Understanding The 10th Amendment

The “winners” write the history, and always in favor of their side of the “argument”.

Government’s job is to “control” the people. Control takes power and power comes at a price: the people’s liberty. In a nutshell, government power  stands as the enemy of liberty. And when it comes to the war between power and liberty, power generally triumphs.

Government wins.

And government writes our history.

Most people allow the government to educate their children and that means they learn the approved government version of history. Sadly, it is totally corrupt. Few Americans realize it and can’t, or wont, correct the mistake.

I will try to help correct a piece of the disinformation surrounding the 10th Amendment and put it all into the correct perspective for you.

We’ve  watched government trample on the  Constitution throughout most of our recent history. We do not have to look very far to see examples. President Bush’s Administration created the The Patriot Act, anything but patriotic. Throughout his terms in office, Bush completely disregarded what the Constitution said and wielded the arms of war with wanton disregard.

President Obama continues in the same vein with more anti-constitutional measures. When Congress does not do what Obama wants he creates Executive Orders with the force of law. Effectively legislating from the White House and overstepping his constitutional boundaries without any regard to the laws our country.

Our Constitution is a document designed to LIMIT the power of the federal government. It enumerates the exact duties, responsibilities and powers of each branch of the federal government. In other words, the federal government ONLY has the powers over things that are specifically spelled out in the Constitution. ALL OTHER POWERS are reserved for the states and people. This is succinctly spelled out in the 10th Amendment.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Details

Bill Proposed To Keep Federal Hands Off Alabama-Produced Firearms

There has been a growing number of states recently looking to pass laws that nullify overreaching federal intrusions on Second Amendment rights with Alabama being one of the latest states looking to protect the natural rights of its citizens. Alabama Senate Bill 43 is called the ‘Firearms Freedom Act’ and it intends to ‘exempt from…

Details